Everyone Deserves a Good Lawyer
So believes William Gagen, even though his clients sometimes do terrible things
Published in 2010 Northern California Super Lawyers magazine
By Stan Sinberg on July 8, 2010
Back in 1976, William Gagen was a 32-year-old criminal defense attorney coming off a controversial case involving Joseph Remiro, a member of the Symbionese Liberation Army, who had been charged with the attempted murder of a police officer. (After a six-month trial in Los Angeles, the jury hung and the case was dismissed; Remiro was later convicted in a different trial of a different crime.) He was wondering where his next explosive case would come from. Then he read a newspaper story about three men who kidnapped a busload of school children in Chowchilla.
Then the phone rang.
The kidnappings were, if possible, a more sensational story than the Remiro case. Two brothers and a friend kidnapped 26 elementary school children and the bus driver, buried them underground in a trailer, and planned to demand a $5 million ransom from the state; the children escaped some 16 hours later. After the kidnappers were arrested, emerging details of their misguided and poorly executed scheme came to light. They’d picked kids from one of the Central Valley’s poorest counties and the kidnappers couldn’t figure out where to send the ransom note.
“They used comic-book reasoning,” says Gagen, shaking his head, from his rustic Danville office at Gagen McCoy, adding, “the kidnappers didn’t consider how often children need to go to the bathroom—especially when they’re scared.”
Gagen, now 67, represented the younger of the brothers, Richard Schoenfeld, 19. When asked what defense he employed, Gagen laughs. “You know the expression ‘I got nothin’?’”
Then he quickly adds, “It was a ‘sentencing’ case, not a ‘guilt’ case.”
In his 40 years of practice, one thing Gagen has never had to worry about is finding fascinating cases. They find him.
Gagen was raised in Sonora, Calif., population 2,500, situated roughly 50 miles from Yosemite. In junior high school, a bout of rheumatic fever kept him home for nine months. When he recovered, he boarded at a San Jose Jesuit high school, Bellarmine College Preparatory, where a priest encouraged him to join the debate team. That’s where Gagen discovered his voice.
He went to Georgetown University, and in 1965, his senior year, became a member of the student council. That same year he took part in the civil rights march from Selma to Montgomery. He was greeted by bayoneted Alabama state guardsmen who called him a “white nigger.”
“What surprised me was the absolute hatred the state guard, nationalized by President Johnson, had for the marchers,” he says.
In the break between college and law school, Gagen participated in Operation Crossroads Africa—a sort of “summer Peace Corps,” he says—and traveled to the Republic of Niger to help build a community center. That Gagen had no carpentry skills didn’t stop him. “We were a novelty and attracted people who knew how to build one,” he says.
During his first year at Boalt, Gagen met his future wife, Marianne, a sophomore in college. The couple dated until Marianne spent a year studying abroad in France, during which time, Gagen says, “she reminds me frequently that I didn’t write as often as I should have.” They’ve been married 41 years and have three sons.
While at Georgetown, Gagen enrolled in the ROTC program, completing three years. When he got to Berkeley, he sought to re-enroll. This was during the days when Berkeley was at the epicenter of anti-Vietnam war protests.
“I had a speech planned about what a mistake I’d made dropping out of ROTC, and the officer interrupted, ‘Wait. You want to go back into ROTC and you go to Berkeley? You’re in!” The officer suggested that Gagen drill at 7 a.m. so he could change out of his military garb before classes.
Ten days after taking the bar exam, Gagen went on active duty with the Army. He was stationed in Indianapolis where he was chosen to teach courses in public speaking to both those he outranked and those who outranked him. “I sat across the table from majors, colonels, officers with three or four rows of ribbons, and said, ‘Sir, with all due respect, let me suggest that your ability to communicate is impacted by … ’”
When he re-entered civilian life, he took a job with the Contra Costa County District Attorney’s Office, where he stayed for 18 months. During his time there he estimates he tried nine felonies and handled 35 to 40 misdemeanors.
Next he accepted a job at the firm of former Alameda prosecutor Edward Merrill, which today is Gagen McCoy. “I learned a great deal in the DA’s office about how the system works,” he says. Among those lessons was that a “prosecutor’s discretionary power is enormous,” as are the government’s resources.
Of all his cases, Gagen considers his “best” trial his defense of Bradley Page, a UC Berkeley student accused of killing his girlfriend, Roberta “Bibi” Lee, in Tilden Park in 1984. The pair had been hiking with a small group, separated, and Page came back alone. For a month the case was treated as a “disappearance,” with Page joining in the extensive searches. When Lee’s body was discovered, the police intensely questioned Page, who gave a 16-minute confession.
When Gagen heard it, he was skeptical. “It wasn’t ‘I did this and here’s how,’” he says. “The whole confession was laden with dream-like remembrances: ‘I must’ve done it. I have this vision of a, b and c happening.’” The police, Gagen says, pressured Page, using “good cop/bad cop” and insisting on a polygraph test, which they asserted Page failed. Page’s confession clearly sounded like that of an exhausted young man.
Gagen adds that certain details in the confession, including what object Page used to kill Lee and the act of necrophilia, didn’t ring true. Amazingly, he says, the police never asked Page to show them where he’d slain her.
“The critical issue was under what circumstances will someone confess to something he didn’t do,” Gagen says. “We’re now learning about water-boarding and coercing statements from captives and that the information you get is not all that reliable.”
Page recanted his confession and, at the trial, Gagen says he acted against the conventional wisdom of keeping negative information about the defendant from the jury. “I introduced the polygraph test and dealt with the necrophilia head-on. I decided that the more the jury knew about the confession, the more they’d see that it couldn’t have happened [that way],” he says.
It worked: the jury returned verdicts of not guilty in first- and second-degree murder, and deadlocked on voluntary manslaughter. A re-trial, without Gagen, produced a guilty verdict on voluntary manslaughter.
Gagen has received his share of hate mail, but he notes that most people understand the concept that everyone is entitled to a fair trial.
At the same time, he remains frustrated by the system. He cites Schoenfeld, the 19-year-old kidnapper, as an example. He managed to have him sentenced as a youth offender, making him eligible for parole in one year. Yet Schoenfeld remains behind bars to this day. The case, he says, illustrates how the public perception of criminals can be drastically at odds with who they really are.
“He was a very naïve kid,” he says of Schoenfeld, a “pimple-faced teenager” who, after he was in custody, asked the attorney, “What are the chances I can go to my girlfriend’s senior prom?”
Objectively, he insists, Schoenfeld shouldn’t still be behind bars. “But every time he comes up for parole, the victims, now mostly in their 40s, testify and blame every malady in the world— from baldness to weight gain—on that incident.”
Gagen also rues the decline in the use of probation.
“Probation officers used to play a vital role, particularly with minors. They’d go to the kid’s school and home and check how he’s doing,” he says. “Those services are primarily over.”
“[In ‘adult’ court,] we’d have pre-plea probation reports, where the probation officer, with the defense attorney’s consent, would evaluate a defendant for issues pertaining to mental health, physical problems, mitigating circumstances, before we—the attorney, prosecutor and judge—discussed the best way to resolve the case. This rarely happens anymore, either. I believe many defendants benefited from intense probationary supervision.”
Budget cuts are the principal reason, of course, affecting everything from the court proceedings to the buildings themselves.
“You walk into any court building in Contra Costa or Alameda, and you go, ‘My God, the buildings are in awful shape,’” Gagen says. “You walk into a federal courthouse, the bathroom is marble. In the state courts they’re not even cleaned.
“And whoever thought a trial would be interrupted by ‘Furlough Day,’” he says, referring to the closing of courtrooms the third Wednesday of each month.
Yet another peeve of Gagen’s is the broad range of offenses included in the imposed “290 registration”—a lifelong registration as a sex offender. What was initially meant for violent sex offenders and predators now applies, he says, to people who have committed lesser crimes. “It’s ineffective, even counterproductive,” he argues.
As a former president of both the Contra Costa County Bar Association and the Alameda-Contra Costa Trial Lawyers’ Association, Gagen has noticed a noticeable decline in the collegiality of lawyers towards each other. “I’d say the first 20 years of my practice, lawyers enjoyed being with other lawyers. They respected each other, you could ‘roast’ a judge. Now we’re all in our own pockets of practice, and there’s this tension between prosecutors and defense attorneys. It’s unfortunate.”
From 1984 to 2005, Gagen taught courses in evidence, trial practice and criminal law as an adjunct professor at John F. Kennedy University College of Law. He notes the two professions are very similar.
“The same skills are utilized in teaching and practicing. Both teacher and attorney must convey, ‘This is what you’re going to learn’ and then make the material understood,” he says. “From the very first moment, everything a good lawyer does, from choosing jurors to putting on witnesses to the asking of questions, should tie in to ‘What am I going to tell this jury in closing arguments?’”
Despite a career of handling controversial cases, Gagen says, “I don’t see myself as a ‘cause-oriented’ lawyer, nor do I feel the prosecutorial side is oppressing us.” He emphasizes that it’s in everyone’s benefit for judges, prosecutors and defenders to respect each other and to treat every defendant the same, whether they’re famous, infamous or both.
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